DA making plans to deal with cases tainted by drug lab scandal

The Bristol County District Attorney’s Office is now having meetings with representatives of the Massachusetts trial court system to establish court dates for special sessions to deal with a deluge of legal challenges in the aftermath of the state drug testing lab scandal.

The Bristol County District Attorney’s Office is now having meetings with representatives of the Massachusetts trial court system to establish court dates for special sessions to deal with a deluge of legal challenges in the aftermath of the state drug testing lab scandal.

Special court sessions are being set up throughout the state after chemist Annie Dookhan allegedly failed to follow testing protocols and altered results at the new Hinton State Lab. In each county, judges have been designated to oversee cases for which defendants file requests for dismissal, based on questionable drug analysis.

While dates for special court sessions have been set for Suffolk Superior Court in mid-October, special court sessions for cases in Bristol County and other counties have not yet been set.

The judges chosen to hear cases in Bristol County include Robert Kane, for Superior Court cases at Fall River Superior Court, along with Gilbert Nadeau and Kevan Cunningham, for district court cases at the Fall River District Court. The Massachusetts Supreme Judicial Court said the court locations were determined based on proximity to the county House of Correction, which in the case of Bristol County is in Dartmouth, and that video conferencing will be used whenever possible.

While meetings continue with the district attorneys and defense lawyers in each county to establish court dates for the special sessions, the trial court said it is ready and available to handle cases immediately.

The office of Bristol County District Attorney Sam Sutter did not immediately have comment on the trial court’s managing of the drug lab cases through special sessions. But a spokesman for the Bristol County District Attorney’s Office discussed the situation and the approach prosecutors will take.

“It’s a fluid and unfolding situation that continues to unfold as the days go by,” said Gregg Miliote. “It’s moving along from our perspective. We are taking the approach of taking these cases one-by-one, reviewing these cases on a case-by-case basis because every case is different. We are not taking a blanket approach.”

There are about 4,400 Bristol County cases that could potentially be affected by state drug lab scandal, Miliote said.

State officials have said that more than 1,100 defendants are currently serving time in county jails or state prisons as the result of convictions based on samples tested by Dookhan. State police said Dookhan tested more than 60,000 samples in connection to 34,000 defendants during her nine years at the lab.

Dookhan was arrested and charged with obstruction of justice last week after allegedly acknowledging to state police that she failed to follow testing protocols and altered results at the now-closed lab.

Miliote pointed to the handling of a case involving drug charges against New Bedford’s Nathan Martin as an example of how the Bristol County District Attorney’s Office will deal cases tainted by the drug lab scandal. The lawyers for Martin — arrested in 2010 on drug charges, after police seized 122 grams of heroin from his home — unsuccessfully requested for personal recognizance instead of the $25,000 cash bail he was originally given.

Page 2 of 2 - “Our position was his bail should not be reduced because of his past criminal record and certain admissions during the pendency of the case,” Miliote said. “We will continue to use that tactic as motions come in.”

Francis O’Boy, a prominent Taunton-based criminal defense attorney, said he could not recall a similar situation that required special court sessions to handle an influx of dismissal requests. O’Boy said he expects that as if the main evidence is tainted in the drug cases, it will cause them to be dismissed, despite other circumstantial evidence.

“If evidence is obscured you can’t try the case,” O’Boy said. “I wouldn’t expect if there is other evidence they could go forward. In most cases, analysis of drug was going to determine it. If the drugs have been destroyed or they have been mixed, how can you try them for trafficking, or intent to distribute, which is based on the weight of the substance.”

O’Boy said he is confident in the judges selected for Bristol County. “They have an excellent grasp on what’s going on and they have some common sense,” he said.

O’Boy said the entire situation is regrettable, and he tied the drug lab controversy to a lack of funding from the federal government for the state’s justice system and understaffing.